42 U.S. Code § 1773 - School breakfast program

There is hereby authorized to be appropriated such sums as are necessary to enable the Secretary to carry out a program to assist the States and the Department of Defense through grants-in-aid and other means to initiate, maintain, or expand nonprofit breakfast programs in all schools which make application for assistance and agree to carry out a nonprofit breakfast program in accordance with this chapter. Appropriations and expenditures for this chapter shall be considered Health and Human Services functions for budget purposes rather than functions of Agriculture.

(i)The Secretary shall make breakfast assistance payments to each State educational agency each fiscal year, at such times as the Secretary may determine, from the sums appropriated for such purpose, in an amount equal to the product obtained by multiplying—

(I)the number of breakfasts served during such fiscal year to children in schools in such States which participate in the school breakfast program under agreements with such State educational agency; by

(II)the national average breakfast payment for free breakfasts, for reduced price breakfasts, or for breakfasts served to children not eligible for free or reduced price meals, as appropriate, as prescribed in clause (B) of this paragraph.

(ii)The agreements described in clause (i)(I) shall be permanent agreements that may be amended as necessary. Nothing in the preceding sentence shall be construed to limit the ability of the State educational agency to suspend or terminate any such agreement in accordance with regulations prescribed by the Secretary.

(B)The national average payment for each free breakfast shall be 57 cents (as adjusted pursuant to section
1759a(a) of this title). The national average payment for each reduced price breakfast shall be one-half of the national average payment for each free breakfast, except that in no case shall the difference between the amount of the national average payment for a free breakfast and the national average payment for a reduced price breakfast exceed 30 cents. The national average payment for each breakfast served to a child not eligible for free or reduced price meals shall be 8.25 cents (as adjusted pursuant to section
1759a(a) of this title).

(C)No school which receives breakfast assistance payments under this section may charge a price of more than 30 cents for a reduced price breakfast.

(D)No breakfast assistance payment may be made under this subsection for any breakfast served by a school unless such breakfast consists of a combination of foods which meet the minimum nutritional requirements prescribed by the Secretary under subsection (e) of this section.

(E) Free and reduced price policy statement.— After the initial submission, a local educational agency shall not be required to submit a free and reduced price policy statement to a State educational agency under this chapter unless there is a substantive change in the free and reduced price policy of the local educational agency. A routine change in the policy of a local educational agency, such as an annual adjustment of the income eligibility guidelines for free and reduced price meals, shall not be sufficient cause for requiring the local educational agency to submit a policy statement.

(2)

(A)The Secretary shall make additional payments for breakfasts served to children qualifying for a free or reduced price meal at schools that are in severe need.

(B)The maximum payment for each such free breakfast shall be the higher of—

(i)the national average payment established by the Secretary for free breakfasts plus 10 cents, or

(C)The maximum payment for each such reduced price breakfast shall be thirty cents less than the maximum payment for each free breakfast as determined under clause (B) of this paragraph.

(3)The Secretary shall increase by 6 cents the annually adjusted payment for each breakfast served under this chapter and section
1766 of this title. These funds shall be used to assist States, to the extent feasible, in improving the nutritional quality of the breakfasts.

(4)Notwithstanding any other provision of law, whenever stocks of agricultural commodities are acquired by the Secretary or the Commodity Credit Corporation and are not likely to be sold by the Secretary or the Commodity Credit Corporation or otherwise used in programs of commodity sale or distribution, the Secretary shall make such commodities available to school food authorities and eligible institutions serving breakfasts under this chapter in a quantity equal in value to not less than 3 cents for each breakfast served under this chapter and section
1766 of this title.

(5)Expenditures of funds from State and local sources for the maintenance of the breakfast program shall not be diminished as a result of funds or commodities received under paragraph (3) or (4).

(c) Disbursement of apportioned funds by State; preference for schools in poor economic areas, for students traveling long distances daily, and for schools for improvement of nutrition and dietary practices of children of working mothers and from low-income families

Funds apportioned and paid to any State for the purpose of this section shall be disbursed by the State educational agency to schools selected by the State educational agency to assist such schools in operating a breakfast program and for the purpose of subsection (d) of this section. Disbursement to schools shall be made at such rates per meal or on such other basis as the Secretary shall prescribe. In selecting schools for participation, the State educational agency shall, to the extent practicable, give first consideration to those schools drawing attendance from areas in which poor economic conditions exist, to those schools in which a substantial proportion of the children enrolled must travel long distances daily, and to those schools in which there is a special need for improving the nutrition and dietary practices of children of working mothers and children from low-income families. Breakfast assistance disbursements to schools under this section may be made in advance or by way of reimbursement in accordance with procedures prescribed by the Secretary.

(d) Severe need assistance

(1) In general

Each State educational agency shall provide additional assistance to schools in severe need, which shall include only those schools (having a breakfast program or desiring to initiate a breakfast program) in which—

(A)during the most recent second preceding school year for which lunches were served, 40 percent or more of the lunches served to students at the school were served free or at a reduced price; or

(B)in the case of a school in which lunches were not served during the most recent second preceding school year, the Secretary otherwise determines that the requirements of subparagraph (A) would have been met.

(2) Additional assistance

A school, on the submission of appropriate documentation about the need circumstances in that school and the eligibility of the school for additional assistance, shall be entitled to receive the meal reimbursement rate specified in subsection (b)(2) of this section.

(A)Breakfasts served by schools participating in the school breakfast program under this section shall consist of a combination of foods and shall meet the minimum nutritional requirements prescribed by the Secretary on the basis of tested nutritional research, except that the minimum nutritional requirements shall be measured by not less than the weekly average of the nutrient content of school breakfasts. Such breakfasts shall be served free or at a reduced price to children in school under the same terms and conditions as are set forth with respect to the service of lunches free or at a reduced price in section
1758 of this title.

(B)The Secretary shall provide through State educational agencies technical assistance and training, including technical assistance and training in the preparation of foods high in complex carbohydrates and lower-fat versions of foods commonly used in the school breakfast program established under this section, to schools participating in the school breakfast program to assist the schools in complying with the nutritional requirements prescribed by the Secretary pursuant to subparagraph (A) and in providing appropriate meals to children with medically certified special dietary needs.

(2)At the option of a local school food authority, a student in a school under the authority that participates in the school breakfast program under this chapter may be allowed to refuse not more than one item of a breakfast that the student does not intend to consume. A refusal of an offered food item shall not affect the full charge to the student for a breakfast meeting the requirements of this section or the amount of payments made under this chapter to a school for the breakfast.

Subsec. (d). Pub. L. 108–265, § 201, added subsec. (d) and struck out former subsec. (d), which authorized severe need assistance to schools in which the service of breakfasts is required by State law and to schools in which 40 percent or more of lunches were served free or at a reduced price during the most recent second preceding school year, and entitled such schools to receive the lesser of 100 percent of the operating costs of the breakfast program or the meal reimbursement rate specified in subsec. (b)(2).

1999—Subsecs. (b), (e)(1)(A). Pub. L. 106–78made technical amendment to references in original act which appear in text as references to sections
1758,
1759a, and
1766 of this title.

1998—Subsec. (a). Pub. L. 105–336, § 201, struck out “and to carry out the provisions of subsection (g) of this section” before period at end of first sentence.

Subsec. (b)(1)(B). Pub. L. 105–336, § 103(b)(2)(A), struck out “adjusted to the nearest one-fourth cent,” after “payment for each free breakfast,” in second sentence.

Subsec. (b)(2)(B)(ii). Pub. L. 105–336, § 103(b)(2)(B), substituted “(as adjusted pursuant to section
1759a(a)(3)(B) of this title).” for “, which shall be adjusted on an annual basis each July 1 to the nearest one-fourth cent in accordance with changes in the series for food away from home of the Consumer Price Index published by the Bureau of Labor Statistics of the Department of Labor for the most recent twelve-month period for which such data are available, except that the initial such adjustment shall be made on January 1, 1978, and shall reflect the change in the series of food away from home during the period November 1, 1976, to October 31, 1977.”

Subsec. (e)(1)(B). Pub. L. 104–193, § 723(a), struck out at end “The Secretary shall provide through State educational agencies additional technical assistance to schools that are having difficulty maintaining compliance with the requirements.”

1994—Subsec. (e)(1). Pub. L. 103–448, § 201(a), (b), designated existing provisions as subpar. (A), inserted “, except that the minimum nutritional requirements shall be measured by not less than the weekly average of the nutrient content of school breakfasts” before period at end, and added subpar. (B).

Subsec. (g). Pub. L. 103–448, § 201(d), amended heading and text of subsec. (g) generally. Prior to amendment, text required the Secretary to pay State educational agencies to assist eligible schools in initiating a school breakfast program, set forth a plan by which certain State educational agencies competing for startup cost payments were to be given preference, provided that breakfast program maintenance funds were not to be diminished by these payments, defined “eligible school”, and directed Secretary to report to Congress.

1989—Subsec. (a). Pub. L. 101–147, § 121(1), inserted before period at end of first sentence “and to carry out the provisions of subsection (g) of this section”.

Subsec. (b)(3). Pub. L. 101–147, § 322(2), made technical amendment to reference to section
1766 of this title involving underlying provisions of original act and requiring no change in text.

Subsec. (b)(3) to (5). Pub. L. 101–147, § 212(a)(1), (2)(A), amended subsec. (b)(3) to (5), as amended identically by Pub. L. 99–591, § 330(a), andPub. L. 99–661, § 4210(a), and as further amended by Pub. L. 100–435, § 210, to read as if only the amendment by Pub. L. 99–661was enacted, and further amended subsec. (b)(3) identically to the amendment that was made by Pub. L. 100–435, resulting in no change in text, see 1986 and 1988 Amendment notes below.

Subsec. (f). Pub. L. 101–147, § 121(2), inserted “Expansion of program” as heading, designated existing provisions as par. (1), struck out at end “Within 4 months after October 7, 1975, the Secretary shall report to the committees of jurisdiction in the Congress his plans and those of the cooperating State agencies to bring about the needed expansion in the school breakfast program.”, and added par. (2).

1978—Subsec. (a). Pub. L. 95–561inserted provision relating to applicability to programs of the Department of Defense.

Subsec. (d). Pub. L. 95–627specified which schools could be considered to be in severe need.

1977—Subsec. (b)(1). Pub. L. 95–166, § 12(1), (2), designated existing provisions as par. (1) and struck out provision for payment of up to 45 cents for breakfasts served to children qualifying for a free breakfast in cases of severe need, which is now covered in par. (2).

Subsec. (d). Pub. L. 95–166, § 12(4), substituted requirement that the Secretary establish eligibility standards for providing additional assistance to schools in severe need for prior requirement that the State educational agency require applicant schools to provide justification of the need for such assistance; required the eligibility standards to be submitted to the Secretary for approval and to be included in the State plan of child nutrition operations and submission of appropriate documentation about the need circumstances in the school and the school’s eligibility for additional assistance; and authorized payment of the lesser of 100 percent of the operating costs or the meal reimbursement rate, previously limited to the 100 percent payment.

1975—Subsec. (a). Pub. L. 94–105, § 2, struck out “for the fiscal years ending June 30, 1973, June 30, 1974, and June 30, 1975,” after “such sums as are necessary”.

Subsec. (b). Pub. L. 94–105, § 15(b), substituted “American Samoa, and the Trust Territory of the Pacific Islands” for “and American Samoa” wherever appearing in cl. (1) of first sentence.

Subsec. (f). Pub. L. 94–105, § 17(a), substituted “directly to the schools (as defined in section
1784(c) of this title which are private and nonprofit as defined in the last sentence of section
1784(c) of this title)” for “directly to the nonprofit private schools”.

1973—Subsec. (b). Pub. L. 93–150, § 4(c), prescribed a minimum payment of 8 cents as the national average payment for all breakfasts served to eligible children, inserted provision for minimum payment of 15 cents for each reduced-price breakfast and for minimum payment of 20 cents for each free breakfast, and authorized, in cases of severe need, a payment of up to 45 cents for each breakfast served to children qualifying for a free breakfast.

Subsec. (c). Pub. L. 93–150, § 4(a), (b), substituted in first sentence “State educational agency to assist such schools in financing the costs of operating a breakfast program” for “State educational agency, to assist such schools in financing the cost of obtaining agricultural and other foods for consumption by needy children in a breakfast program” and struck out second sentence which provided that “Such food costs may include, in addition to the purchase price, the cost of processing, distributing, transporting, storing, and handling.”, respectively.

1972—Subsec. (a). Pub. L. 92–433, § 3(a), substituted authorization of appropriation of such sums as are necessary for fiscal years ending June 30, 1973, June 30, 1974, and June 30, 1975, for provisions authorizing appropriation of amounts not exceeding $25,000,000 for fiscal years 1972 and 1973 and made amounts available to schools making applications for assistance and agreeing to carry out a nonprofit breakfast program in accordance with this chapter.

Subsec. (b). Pub. L. 92–433, § 3(b), made existing apportionment formula applicable to fiscal year ending June 30, 1973 and added new formula for fiscal years beginning with fiscal year ending June 30, 1974.

Subsec. (c). Pub. L. 92–433, § 3(c), inserted provision that breakfast assistance disbursements to schools may be made in advance or by way of reimbursement in accordance with procedure prescribed by the Secretary.

Subsec. (e). Pub. L. 92–433, § 3(d), substituted provisions that breakfasts be served free or at reduced cost under same terms and conditions as set forth in section
1758 of this title for provisions relating to determination by local school authorities of the inability of children to pay full cost, criteria for such determination, income poverty guidelines, affidavit of household’s annual income, eligibility of nonprofit private schools for funds, and prohibition of discrimination on account of inability to pay.

Subsec. (f). Pub. L. 92–433, § 3(e), substituted provisions that for fiscal year ending June 30, 1973, withholding and disbursement to nonprofit private schools will be effected as before and that commencing with the next fiscal year, the Secretary would directly make payments to the nonprofit private schools participating in the breakfast program under agreement with the Secretary for provisions that such withholding and disbursement be effected in accordance with section
1759 of this title with some exceptions.

1971—Subsec. (a). Pub. L. 92–32, § 2, authorized appropriations of 25 million dollars for fiscal years 1972, and 1973, and struck out provision for appropriation of 6.5, 10, and 25 million dollars for fiscal years, 1969, 1970, and 1971, respectively.

Subsec. (c). Pub. L. 92–32, § 3, substituted “assist such schools in financing the cost” for “reimburse such schools for the cost” and provided for preference of schools for improvement of nutrition and dietary practices of children of working mothers and from low-income families.

Subsec. (e). Pub. L. 92–32, § 5, substituted provisions relating to criteria for determination of eligible children, income poverty guidelines, priority of neediest children, affidavit of household’s annual income, and certification of availability of funds for nonprofit private schools, for former provision for determination of eligible children on basis of consultations of local school authorities with public welfare and health agencies.

Subsec. (e). Pub. L. 91–248, § 6(d), provided that there be no overt identification of those children who receive free and reduced price meals.

1968—Subsec. (a). Pub. L. 90–302provided authorization to appropriate $6,500,000 for fiscal year 1969, not to exceed $10,000,000 for fiscal year 1970, and not to exceed $12,000,000 for fiscal year 1971, struck out references to authorization for fiscal years 1967 and 1968 and to pilot programs conducted on a nonpartisan basis, and added provision that appropriations and expenditures for this chapter be considered Health, Education, and Welfare functions for budget purposes rather than functions of Agriculture.

Effective Date of 2004 Amendment

Amendment by section 108(c) ofPub. L. 108–265effective June 30, 2004, and amendment by section 201 ofPub. L. 108–265effective July 1, 2004, see section 502(a), (b)(1) ofPub. L. 108–265, as amended, set out as an Effective Date note under section
1754 of this title.

Pub. L. 101–147, title II, § 212(a)(2)(B),Nov. 10, 1989, 103 Stat. 912, provided that: “The amendments made by subparagraph (A) [amending this section] shall take effect as if such amendments had been effective on July 1, 1989.”

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–435to be effective and implemented on July 1, 1989, see section 701(b)(4) ofPub. L. 100–435, set out as a note under section
2012 of Title
7, Agriculture.

Amendment by Pub. L. 95–561effective Oct. 1, 1978, and no provision therein to be construed as impairing or preventing the taking effect of any other Act providing for the transfer of functions described therein to an executive department having responsibility for education, see section 1415 ofPub. L. 95–561, set out as an Effective Date note under section
921 of Title
20, Education.

Transfer of Functions

For transfer to Secretary of Education of functions of Secretary of Defense and Department of Defense relating to operation of overseas schools for dependents of Department of Defense and under Defense Dependents’ Education Act of 1978, 20 U.S.C. 921 et seq., see section
3442(a) of Title
20, Education.

Review of Best Practices in the Breakfast Program

Pub. L. 108–265, title II, § 206,June 30, 2004, 118 Stat. 787, directed the Secretary of Agriculture to enter into an agreement with a research organization to collect and disseminate a review of best practices to assist school food authorities in addressing existing impediments at the State and local level that hinder the growth of the school breakfast program and, not later than 1 year after June 30, 2004, to make the review available to school food authorities via the Internet and to transmit it to congressional committees.

Consolidation of School Lunch Program and School Breakfast Program Into Comprehensive Meal Program

For provisions directing Secretary of Agriculture to consolidate school breakfast program under this section and school lunch program under chapter 13 (§ 1751 et seq.) of this title into comprehensive meal program, see section 301 ofPub. L. 103–448, set out as a note under section
1751 of this title.

Adjustments in Maximum Breakfast Payments for Fiscal Year Ending September 30, 1981

Pub. L. 96–499, title II, § 210,Dec. 5, 1980, 94 Stat. 2602, provided that: “Notwithstanding section 4(b)(2)(B)(ii) of the Child Nutrition Act of 1966 [subsec. (b)(2)(B)(ii) of this section], in determining the maximum payment for free breakfasts under such section for the fiscal year ending September 30, 1981—

“(1) no adjustment under such section shall be made on January 1 of such fiscal year; and

“(2) the adjustment under such section required to be made on July 1 of such fiscal year shall be computed to the nearest one-fourth cent based on changes, measured over the preceding twelve-month period for which data are available, in the series for food away from home of the Consumer Price Index for All Urban Consumers, published by the Bureau of Labor Statistics, Department of Labor.”

Alternate Foods

Pub. L. 95–627, § 6(d),Nov. 10, 1998, 93 Stat. 3621, provided that: “The Secretary shall not limit or prohibit, during the school year 1978–79, the use of formulated grain-fruit products currently approved for use in the school breakfast program. The Secretary shall consult experts in child nutrition, industry representatives, and school food service personnel and school administrators (including personnel and administrators in school systems using such products) with respect to the continued use of formulated grain-fruit products in the school breakfast program, and shall also take into account the findings and recommendations in the report on this subject of the General Accounting Office [now Government Accountability Office]. The Secretary shall not promulgate a final rule disapproving the use of such products in the school breakfast program beyond the 1978–79 school year until the Secretary has notified the appropriate committees of Congress, and such rule shall not take effect until sixty days after such notification.”

Report to Congress of Needs for Additional Funds for School Breakfast and Nonfood Assistance Programs, Fiscal Year Ending June 30, 1972

Pub. L. 92–153, § 3,Nov. 5, 1971, 85 Stat. 420, provided that the Secretary of Agriculture determine immediately upon enactment of this resolution (Nov. 5, 1971) and report to Congress the needs for additional funds to carry out the school breakfast and nonfood assistance programs during the fiscal year ending June 30, 1972, at levels permitting expansion of the school breakfast and school lunch programs to all schools desiring such programs as rapidly as practicable.

Transfer of Funds to Schools in Need of Additional Assistance in School Breakfast Program

Pub. L. 92–153, § 7,Nov. 5, 1971, 85 Stat. 420, provided that: “In addition to any other authority given to the Secretary he is hereby authorized to transfer funds from section 32 of the Act of August 24, 1935 [section
612c of Title
7, Agriculture], for the purpose of assisting schools which demonstrate a need for additional funds in the school breakfast program.”

Direct Distribution Programs for Diet of Needy Children Suffering From General and Continued Hunger; Additional Funds

Additional funds for direct distribution programs for diet of needy children suffering from general and continued hunger and payment of administrative costs of State or local welfare agency carrying out such programs, see section 6 ofPub. L. 92–32, set out as a note under section
612c of Title
7, Agriculture.